by Terri Jo Neff | Sep 30, 2021 | News
By Terri Jo Neff |
The Arizona Supreme Court will not decide until at least Friday afternoon whether to allow Attorney General Mark Brnovich to bypass the normal appeal process with his challenge to Monday’s ruling by a Maricopa County judge who found dozens of new laws or amendments to existing laws unconstitutional.
Until then, the status quo remains in place, according to Justice Ann Scott Timmer, who signed an order Wednesday denying the attorney general’s emergency motion to stay the Sept. 27 ruling by Judge Katherine Cooper. The decision to deny the requested stay was made after Timmer conferred with five other justices, she noted in the order.
Among other things, Cooper’s ruling means school districts and charter schools can mandate mask wearing, state universities cannot require COVID-19 vaccinations as a condition of in-person attendance, and teachers cannot be sued for organizing walkouts, based on the judge’s finding that all or part of four budget reconciliation bills (BRBs) signed by Gov. Doug Ducey violate the Arizona Constitution.
According to Cooper, the constitution requires the title of each legislative bill to properly identify a single subject matter, so unrelated provisions are not combined into one bill. But the attorney general calls Cooper’s ruling “legally erroneous” and argues the four BRBs are constitutional.
“Each of the provisions contained therein relate directly or indirectly to the subject of the title. And each of the provisions contained in SB 1819 are germane to the subject contained in its title—state budget procedures,” the State argues in the petition for transfer to case from the Arizona Court of Appeals and directly to the Supreme Court.
Such a transfer is warranted due to the impact of Cooper’s ruling which nullified 58 provisions of state law slated to take effect Wednesday, according to the petition.
“The trial court’s ruling carries significant implications for the operation of state government and the State will continue to suffer harm if the trial court’s ruling is not swiftly overturned, allowing the challenged provisions to immediately go into effect,” the petition states. “Extraordinary circumstances exist here and warrant immediate Supreme Court review.”
The court of appeals has set deadlines for briefing in its court just in case the Supreme Court denies the transfer. However, legal observers told AZ Free News that bypassing the court of appeals would be in the interest of judicial economy, as whoever loses there will immediately petition for review to the Supreme Court.
Timmer gave the various plaintiffs until 5 p.m. Thursday to respond to the State’s petition to transfer the appeal out of the Arizona Court of Appeals. The State’s attorneys then have until 3 p.m. Friday to file an optional reply.
The attorney general’s petition also proposes a series of deadlines for filing additional briefings if the justices grant the transfer. Those deadlines would keep the new laws and amendments on the sidelines until at least Oct. 18.
Effected by Cooper’s title / single subject ruling are Sections 12, 21, and 50 of HB2898 (K-12 Education), Sections 12 and 13 of SB1824 (Healthcare), and Section 2 of SB1825 (Higher Education). She also ruled the entire 55 pages of SB1819, the Budget Procedures bill, void due to the same violation.
by Terri Jo Neff | Sep 28, 2021 | News
By Terri Jo Neff |
The Arizona Supreme Court will hear arguments Tuesday morning in a first of its kind case about whether a political candidate or campaign committee can be held liable under state law for defaming a third party or a private company while attacking a political opponent.
Pamela Young claims she and her company Models Plus International (doing business as The Young Agency) were defamed and presented in a false light by campaign ads approved by state Sen. Wendy Rogers in 2018. At the time, Rogers was running for U.S. House of Representatives against Steve Smith, a state senator who had worked for Young’s Christian-based modeling company and talent agency for about a decade.
Young alleges Rogers’ campaign utilized radio, telephone, and direct mail ads which gave the impression Young and her company were involved in or condoned sex trafficking of young children. One such ad called Smith “a slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking.”
Rogers’ campaign also alleged Smith advertised on the Model Mayhem website, which the campaign described as being “full of pornographic material, which has also been involved in human trafficking.”
Smith lost to Rogers in the 2018 Republican primary by less than seven points, but Rogers lost in the General Election.
Young sued for defamation and invasion of privacy. Rogers has continually argued her 2018 ads never “directly” tied Smith to The Young Agency and never directly linked the company to any illegal conduct.
But the ads did not set well with several prominent Republicans, including Congressman Andy Biggs who called Rogers’ effort “one of the most despicable ads in campaign history.”
In 2019, a Maricopa County judge denied a motion by Rogers and her husband to dismiss Young’s claims. However, the Arizona Court of Appeals reversed the lower court in December 2020, ruling Young had not presented sufficient evidence to move her lawsuit forward against the defendants.
Young filed a petition for review to the Arizona Supreme Court in January seeking for her lawsuit to be reinstated. Rogers’ husband Hal Kunnen and her official campaign committee are also named as defendants.
Arizona Attorney General Mark Brnovich filed an amicus curiae brief in the case in June after which the justices set oral arguments for Sept. 28. A decision against Rogers would reinstate Young’s case, which could have major ramifications in how election advertising is conducted in Arizona and protect the rights of employers whose employees run for public office.
Bill Montgomery, who in 2018 was Maricopa County’s elected county attorney, denounced Rogers’ ads as “the worst kind of politics.” Montgomery was later appointed by Gov. Doug Ducey to the Arizona Supreme Court. He has recused himself from hearing Rogers’ petition. In his place, Judge Philip Espinosa of the Arizona Court of Appeals will sit in on arguments.
The ads also did not set well with Kathleen Winn, who is a member of the Maricopa County Community College District board. She is also an expert on child sex trafficking in Arizona.
“If you happen to believe one of your opponents is exploiting children, trafficking minors, selling them on a website for sex producing a political attack ad is NOT your first course of business,” Winn said. “Contacting law enforcement to report the alleged crime is what you need to do.”
Rogers was elected to the state Senate for LD6 in November 2020.
by Corinne Murdock | Aug 20, 2021 | Education, News
By Corinne Murdock |
On Thursday, the Arizona Supreme Court ruled that Proposition 208 (Prop 208), the voter-approved increase on income taxes to fund public education, was unconstitutional and remanded to lower court. If that trial court determines that Prop 208 exceeds the constitutional spending limit, then Prop 208 would be killed. Chief Justice Brutinel authored the opinion.
The case, Fann, et al. v. State of Arizona, et al., challenged one major provision of Prop 208 and the circumstances of its approval.
First, the case questioned how Prop 208 exempted itself from the Arizona Constitution’s provisions on tax revenue spending caps, or the Education Expenditure Clause.
Brutinel ruled this aspect of Prop 208 unconstitutional. The chief justice made sure to note that this ruling rendered the other aspects of Prop 208 unworkable and unseverable. Meaning, no part of Prop 208 is enforceable if the trial court concurs with the Arizona Supreme Court’s opinion.
“We hold that the direct funding provision does not fall within the constitutional definition of grants in article 9, section 21 of the Arizona Constitution, and Prop. 208 is therefore unconstitutional to the extent it mandates expending tax revenues in violation of the Education Expenditure Clause,” wrote Brutinel. “Likewise, the remaining non-revenue related provisions of Prop. 208 are not separately workable and thus not severable.”
Second, the case challenged tax impositions made by voter initiative. The plaintiffs cited the Arizona Constitution’s Tax Enactment Clause, which stipulates that tax changes must be approved through a two-thirds vote by the state legislature.
The court disagreed with this assessment.
“Additionally, we hold that Prop. 208 does not violate article 9, section 22 of the Arizona Constitution (‘Tax Enactment Clause’), because that clause does not apply to voter initiatives,” wrote Brutinel. “Therefore, the bicameralism, presentment, and supermajority requirements found therein are inapplicable to Prop. 208.”
The Goldwater Institute, Snell & Wilmer, and Greenberg Traurig filed the lawsuit on behalf of the 11 plaintiffs: State Senate President Karen Fann (R-Prescott); State Senators David Gowan (R-Sierra Vista) and Vince Leach (R-Tucson); Arizona House Speaker Russell Bowers (R-Mesa); State Representatives Regina Cobb (R-Kingman), John Kavanaugh (R-Fountain Hills), Steve Pierce (R-Prescott); Montie Lee of Lee Farms; Dr. Francis Surdakowski; NO on 208; and Arizona Free Enterprise Club.
In a statement, Goldwater Institute Vice President for Litigation Timothy Sandefur classified the ruling as a win.
“Today represents a major victory for the hardworking taxpayers of Arizona,” said Sandefur. “The justices made clear that the state constitution’s limits on spending—which were added to the Constitution by the voters themselves—cannot be simply ignored, as Prop. 208’s funders attempted.”
Governor Doug Ducey concurred that this ruling signaled that the end was near for Prop 208.
“There is a clear legal path to Prop 208 being knocked down entirely, it’s only a matter of time,” tweeted Ducey. “The out-of-state proponents of this measure drafted bad language, and now they are paying the price.”
Proposition 208 (Prop 208) tacked on 3.5 percent to the existing 4.5 percent income tax for individuals making over $250,000 or couples making over $500,000. Previously, Arizona’s income tax rate was capped at 4.5 percent for individual incomes above $159,000 or joint incomes above $318,000. The revenue from the income tax increase would fund a wide variety of educator salaries and programs.
About 52 percent of Arizonans voted in favor of Prop 208 last November, and about 48 percent voted against it.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
by B. Hamilton | Jul 8, 2021 | News
By B. Hamilton |
On Friday, Kathryn Hackett King, a member of the Arizona Board of Regents and University of Arizona College of Law graduate, was appointed to the Arizona Supreme Court.
Kin’s appointment by Governor Doug Ducey fills the vacancy created by the resignation of Justice Andrew Gould.
Gould is currently running in the Arizona Attorney General’s race.
King’s appointment to the court now leaves a vacancy on the Arizona Board of Regents
King is the fifth woman in Arizona history to serve on the Supreme Court.
King is currently a partner at Burns Barton PLC. The focus of her practice is the representation of private and public employers in employment litigation and related civil matters. King is a member of the Arizona Women Lawyers Association and a mentor for the Latina Mentoring Project.
King began her private practice career at Snell & Wilmer LLP, where she practiced in the areas of employment law and commercial and business litigation.
From 2015 to 2017, King served as Deputy General Counsel to Ducey, according to the Governor’s Office. King clerked for Arizona Supreme Court Justice Michael D. Ryan from 2007 to 2008.
King graduated from Duke University with a Bachelor of Arts, majoring in Political Science and minoring in History. She obtained her law degree from the University of Arizona James E. Rogers College of Law.
“Kate’s strong belief in the separation of powers and experience serving in all three branches of government will serve the people of Arizona well,” Ducey said in a released statement. “I have witnessed her intelligence and wisdom firsthand, and I know she is well-respected in the legal field.”
by Terri Jo Neff | Jun 25, 2021 | News
By Terri Jo Neff |
The Arizona Supreme Court explained Thursday why it ruled last year that the name of rapper turned presidential candidate Kanye West would not be printed on 2020 General Election ballots in the state.
West announced back on July 4, 2020 that he was running as an Independent candidate for president. His multi-million dollar effort resulted in less than 66,500 votes in the 12 states where his name was on the ballot, along with another 4,000 as write-in votes in a handful of other states.
Questions were later raised as to whether West’s candidacy was simply a publicity endeavor or if he was seeking to draw votes away from Joe Biden in favor of then-President Donald Trump, as the two men had been friends for several years. But in early September, West’s Arizona campaign team submitted 57,892 signatures on nominating petitions to secure a spot on ballots across the state.
A registered voter challenged West’s candidacy in Maricopa County Superior Court where a judge declared the signatures invalid because West’s electors -those voters who would have cast Arizona’s 11 Electoral College votes if West won- never filed required paperwork before the signatures were collected.
The judge also ruled West did not personally qualify to be on ballots in Arizona as an Independent candidate because he was a registered Republican in Wyoming.
West lost his emergency direct appeal to the Arizona Supreme Court, which issued an order at the time enjoining Arizona Secretary of State Katie Hobbs along with the 15 county recorders from listing West and his electors on 2020 General Election ballots. But the public did not learn the legal reasoning behind that decision until Thursday.
“West was required to provide the Secretary (of State) with a letter designating the names of his vice-presidential running mate and his eleven presidential electors, a statement signed by each consenting to their designation, and a nomination paper on behalf of each elector,” Justice Bill Montgomery wrote in the opinion. “Additionally, the electors were required to submit nomination petitions containing the requisite number of signatures to qualify for the ballot.”
The justices, however, determined the Maricopa County judge who heard the case last September erred in ruling that West’s Republican Party affiliation was a factor for keeping his name off the ballot. The statute about party affiliation cited by the judge only applied to the 11 Arizonans who wished to be listed as West’s electors on the ballot, Montgomery wrote.
But that error did not change the fact West was ineligible in Arizona to be on the ballot for president due to failing to secure enough valid nominating petition signatures.
“Given the dispositive effect of West’s electors’ failure to qualify for the ballot, we do not address his other arguments regarding the process for challenging nomination petitions, naming indispensable parties, and the application of laches to plaintiffs,” Montgomery wrote. “We affirm the trial court’s order.”
